P. v. Le

Filed 1/12/07  P. v. Le CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Kern County.  James  M. Stuart, Judge.

            Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Rachelle  A. Newcomb and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

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            Appellant Man Tien Le pleaded no contest to possessing methamphetamine for sale.  Appellant's plea was entered after his motion to suppress evidence obtained in violation of the Fourth Amendment was denied.  He appeals the denial of the motion to suppress.  We affirm.

PROCEDURAL HISTORY

            Appellant was charged by information with possession for sale of a controlled substance (Health & Saf. Code, §  11378).  The information also alleged 1998 and 2002 convictions concerning controlled substances and corresponding prison terms for the convictions.

            Appellant pleaded not guilty and the superior court heard and denied his motion to suppress evidence under Penal Code section 1538.5.  The motion asserted that appellant's rights under the Fourth Amendment were violated because (1) the officers had illegally arrested appellant and thus should have informed him that he had the right to refuse their request to search his bedroom and (2) the search of a padlocked metal box found in his bedroom exceeded the scope of any consent given.

            On September  9, 2005, pursuant to a negotiated plea agreement, appellant withdrew his not guilty plea, entered a plea of no contest, and admitted a previous conviction in 1998 for a controlled substance violation within the meaning of Health and Safety Code section 11370.2, subdivision (c).  In exchange for the plea, the prosecutor agreed to dismiss the remaining allegations in the information.

            The superior court imposed the middle term of two years, plus an additional and consecutive three years pursuant to Health and Safety Code section 11370.2, subdivision (c), for a total of five years in state prison.  The court granted appellant's application for bail in the amount of $50,000 pending appeal.

            Appellant filed a timely notice of appeal on October  26, 2005.

FACTS

            There are three sources of facts available in the record--the transcript from the preliminary hearing, the report of the probation officer, and the transcript of the suppression hearing.  The report of the probation officer provides:

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